Sex Post Facto: Advising Clients Regarding Posthumous Conception
ACTEC Journal (American College of Trust & Estate Counsel) (2013) Forthcoming
39 Pages Posted: 4 Dec 2012
Date Written: 2012
Apart from tax considerations, trust and estate law is often viewed by outsiders as a somewhat dusty area of the law. However, few examples better illustrate the intersection of law and technology than posthumous conception and estate law. While judges, legislators, and commentators have tackled some of the issues created by posthumous conception, few estate planning lawyers discuss the issue with their clients. Such hesitance has been understandable, given the moral sensitivities involved with posthumous conception and the relatively small likelihood that it will affect any one particular client. However, that likelihood is becoming greater with each passing year, and, in the context of grandchildren, the possibility of posthumously conceived children is out of the clients’ control. Rather than ignoring this possibility and leaving the result to chance (or litigation), lawyers have the opportunity - if not the responsibility - to raise the issue with their clients and provide them the opportunity to express their intentions. Ultimately, whether to address the issue in an instrument is the client’s choice, but she cannot make this choice if she is not made aware of the issue. With this Article, estate planning attorneys will have the background necessary to introduce the topic to clients, to educate clients about the technology itself, the legal responses to date, and their various options, and then to draft language to carry out the clients’ intent - whatever it may be.
Keywords: trusts and estates, will planning, testamentary planning, estate law, posthumous conception, reproductive technology
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